US departure from the Human Rights Council: what really happened and what will happen next?

On 19th June, the US Ambassador to the UN, Nikki Haley, flanked by the Secretary of State, Mike Pompeo, announced that the US would resign its membership of the UN Human Rights Council. The news rocked the Council and the wider UN, with many delegations, especially Western delegations, visibly shaken by the news and its implications for the international human rights system. Yet should they – or anyone else – really be surprised?

The short answer is: no. US withdrawal has been largely inevitable ever since short-term (urgent) reform proposals put forward by the President of the Human Rights Council, Ambassador Vojislav Šuc (Slovenia), were rejected in February (initially by the EU – driven by Belgium, France and Portugal; and subsequently by the Organisation of Islamic Cooperation). Those proposals had aimed to reform and rationalise the Council’s programme of work, ostensibly to improve the Council’s efficiency, but with an important additional side effect for the US: there would be fewer ‘item 7’ debates (i.e. focused on Israel) each year. Under the proposals, instead of maintaining the current practice of covering every Council agenda item at every Council session (i.e. three times a year), agenda items (or, at least, debates under those agenda items) would instead be clustered and staggered across the three annual Council sessions.

The US had, of course, originally demanded the outright deletion of item 7, which it has always (rightly) seen as representative of institutional bias against a single State (all other situations of serious human rights violations are addressed under agenda item 4). Speaking in Geneva in July 2017, Ambassador Haley said: ‘the Council’s agenda item 7 must be removed. This, of course, is the scandalous provision that singles out Israel for automatic criticism. There is no legitimate human rights reason for this agenda item to exist.’ (As an interesting – and often overlooked – aside, it is worth recalling that the only reason item 7 was introduced in the first place was because the US, under President George W. Bush, decided to disengage from the Council during the body’s formative years – meaning the US could not block the adoption of the Council’s agenda).

However, between June 2017 and the end of the year, friends and allies of the US, led by the Netherlands and the UK, were able to persuade the US to settle (at least in the short term) for a dilution of item 7 rather than its immediate deletion via a General Assembly resolution in New York (which, even the Trump Administration came to realise, would be difficult to achieve). The issue of the Council’s agenda, together with the other main US demand – improved membership – could instead be addressed within a wider, Geneva-led, process of Human Rights Council strengthening. (This process was not intended, solely, to deliver on US demands, but rather to address a wide range of areas where States believed that Council might be improved).

Against this backdrop, on 1 December 2017, the Netherlands, UK, Mexico, Rwanda and Latvia supported by the Universal Rights Group, organised an informal meeting of States in Geneva on ‘Human Rights Council strengthening’. The meeting, involving around 120 States, together with selected NGOs and UN officials, revealed a large degree of agreement around certain key improvements. That included wide support for streamlining the Council’s programme of work (through the clustering and staggering of agenda items over the course of the year), and for introducing a greater degree of transparency around Council elections and membership (e.g. via the convening of candidate platforms at the General Assembly).

Between January and February 2018, the incoming Council Bureau, led by Ambassador Šuc, took-up many of these ideas, and put in place a process to formally move them forward. That included a medium-term process of consultations led by three sets of two co-facilitators, and, crucially (especially from an American perspective), short-term proposals by the President to immediately streamline the Council’s annual programme of work.

Unfortunately, Ambassador Šuc’s reasonable proposals were critically undermined by his own political group (the EU), due to opposition on the part of Belgium, France and Portugal. For its part, Belgium – encouraged by Western human rights NGOs – objected to any move to cluster and/or stagger agenda item 4 (on situations of violations). This agenda item is so important, it was argued, that it must remain a stand-alone agenda item at every Council session. At the same time, important developing countries, especially those of the OIC, expressed reservations about any move to similarly ‘dilute’ item 7. The President’s proposals thus fell, much to the US’ disappointment.

In fact, referral to the Council’s institution-building package (IBP), and the views of the architect of the IBP, Ambassador Luis Alfonso de Alba (Mexico), the first President of the Council, show that these States and NGOs were misguided in their objection to a more structured programme of work. It was in fact always the intention of the founding fathers of the Council that members, led by the Bureau, should plan and set-down, at the beginning of each year, a sensible and structured programme of work, that would cluster and stagger all agenda items (including debates and adoption of resolutions under those items) across the three annual sessions (i.e. not address each item separately at every session).

This point can be seen in the IBP itself. Nowhere in Council resolution 5/1, presenting the IBP, does the Council decide to address every agenda item at every session. On the contrary, section VI.B of the IBP recognises the need for, inter alia: the ‘clustering of agenda items’; and the ‘staggering [of] the tabling of decisions and/or resolutions and consideration of action on agenda items/issues.’ Likewise, section VII, rule 8, states that at the beginning of each year the Council shall hold an organizational / planning / programming meeting to adopt its programme of work for that year, including ‘approximate dates of consideration of [agenda] items and the number of meetings to be allocated to each item.’

Unfortunately, after the adoption of the IBP in June 2007, despite repeated reminders from the outgoing President, Ambassador de Alba, the Council’s second President, Ambassador Doru Costea (Romania), did not follow the new institutional directions (afforded by the IBP) and simply, erroneously and complacently (the work and time pressures on the Council’s annual programme of work were far less in 2007 than they are today) maintained an annual programme of work wherein all agenda items, all debates, and the consideration of all relevant resolutions, would be undertaken at each and every Council session. This set the tone for all future Presidencies, with each incoming Bureau and membership unable or unwilling to ‘kick the habit.’

Irrespective of the rationale or merits of the objections put forward by Belgium et al, the result of the Council’s failure to endorse the President’s short-term efficiency proposals was a dramatic loss of US confidence in the Geneva process of Council strengthening – from the end of February 2018 onwards. This led, in April-May, to a renewed US desire to secure the simple deletion of item 7, and to bring about immediate changes to the Council’s membership rules (especially to make it easier to throw gross human rights violators off the Council), via a GA resolution.

However, when the US Mission in New York circulated a draft text amongst its friends, these States were not in a position to express support. Despite the fact that much of the draft was relatively constructive and potentially useful (it took up a number of the ideas generated during the 1 December meeting in Geneva – including the proposal to organise candidate platforms at the GA), America’s friends and allies were understandably concerned about the process being following (bringing important institutional changes via simple resolutions tabled by a single State), and about the risk that such a process could be ‘hijacked’ by other States in order to actually weaken the Council (this latter concern was the main driver behind a joint NGO letter to the US administration in May, calling on the US not to table the draft text).

Widespread concern over, and opposition to, the US draft were further exacerbated by the timing of the US informal consultations on its text: i.e. the same week as the US announced its decision to move its Embassy to Jerusalem, causing protests and leading to the killing of Palestinian demonstrators in Gaza.

That then, is the story of America’s withdrawal from the UN Human Rights Council. In truth, from the moment States failed to support the Council President’s February proposals, the die was probably cast on the US’ departure. That said, the main responsibility for this unfortunate move – which will necessarily have negative consequences for the Council and for human rights around the world, but which will mainly hurt US global influence on issues of human rights and democracy, and will leave Israel far more vulnerable to attack at the UN – of course lies with the US itself. While many US diplomats worked hard to secure the reforms needed to allow (in principle) the US to remain a member of the Council, in the final analysis a negotiating strategy conducted with one hand on the handle of the exit door, and within a timetable set by impossibly tight political deadlines, was always likely to end in failure. In the final analysis, such tactics, coming as they have against the backdrop of a series of events that call into serious question the US’ commitment to multilateralism (e.g. its withdrawal from the Paris Agreement on climate change) and to human rights (e.g. the shameful violations of the rights of immigrant children at the US’ southern border) were always likely to end in failure.

So, what next?

There are rumours in Geneva and New York that the US, now unshackled by the political constraints of Council membership, will try again to push a draft resolution at the GA in New York. Certainly Ambassador Haley’s speech announcing the US withdrawal expressed an intention to reconsider the decision should their requested reforms finally come to pass. However, it is unclear why States and NGOs that opposed this move in May would now suddenly support it in July.

It is more likely that progress will be made in the context of the medium-term Council strengthening consultations that remain on going in Geneva. If those talks succeed in putting in place a more balanced and sensible annual (or even multiannual) programme of work, and if parallel progress could be made in securing improved membership (perhaps by, for example, including the idea of a Council candidates platform amongst proposals for the ‘Revitalisation of the work of the General Assembly’ currently being discussed in New York), then perhaps the US could be made to think again. However, standing against this expectation, it is equally the case that now that the US has pinned its colours so squarely to the outright deletion of item 7, it is questionable whether even these institutional ‘wins’ would now be enough.